State v. Jensen

Appeal
from the Criminal Court for Putnam County No. 2015-CR-210
David A. Patterson, Judge

Following
the trial court's denial of an interlocutory appeal
pursuant to Rule 9 of the Tennessee Rules of Appellate
Procedure, the State sought and was granted permission for an
extraordinary appeal pursuant to Rule 10 of the Tennessee
Rules of Appellate Procedure. In this appeal, the State
argues that the trial court erroneously dismissed a burglary
count in a superseding indictment against the Defendant,
Danielle Chandria Jensen, who had previously been charged
with theft of property valued at $500 or less, assault, and
criminal trespass involving the same conduct. See
T.C.A. §§ 39-13-101(a)(1), 39-14-103, -105(a)(1),
-402(a)(3), -405 (Supp. 2014). We affirm the judgment of the
trial court dismissing the burglary count.

Craig
P. Fickling, District Public Defender; and Benjamin D.
Marsee, Assistant Public Defender, for the
Defendant-Appellee, Danielle Chandria Jensen.

Camille R. McMullen, J., delivered the opinion of the court,
in which Robert W. Wedemeyer and Timothy L. Easter, JJ.,
joined.

OPINION

CAMILLE R. McMULLEN, JUDGE

On
October 23, 2014, a police officer charged Jensen by
affidavit of complaint with theft of property valued at
$72.17, a Class A misdemeanor; assault, a Class A
misdemeanor; and criminal trespass, a Class C misdemeanor,
for conduct occurring at a Wal-Mart store in Cookeville,
Tennessee. Although the charges originated in the Putnam
County General Sessions Court, Jensen waived a preliminary
hearing on these charges, and her case was bound over to the
grand jury for consideration on March 11, 2015. The
prosecutor assigned to the case subsequently moved for the
Putnam County Criminal Court to enter an order of nolle
prosequi as to the criminal trespass charge, explaining that
it would be prosecuting Jensen only for the primary charges
of theft and assault and would not be prosecuting her for the
secondary charge of criminal trespass. An order of nolle
prosequi on the criminal trespass charge was entered on April
28, 2015.

On May
5, 2015, the Putnam County Grand Jury returned an indictment
charging Jensen with one count of theft of property valued at
$500 or less and one count of assault, which was consistent
with the charges bound over from general sessions court and
the order of nolle prosequi as to the criminal trespass
charge. On October 6, 2015, the case proceeded to trial in
the Putnam County Criminal Court. On the morning of trial,
the prosecutor made a motion to delete from the theft count
the specific items alleged to have been stolen, which the
trial court granted. Following the presentation of the
evidence at trial, the jury deliberated but was unable to
reach a verdict on the charged offenses of theft and assault.
The trial court declared a mistrial, and the case was placed
on the trial court's docket for November 9, 2015.

On
November 2, 2015, less than one month after the mistrial and
one week prior to the November 9, 2015 court date, the
prosecutor sought and obtained a superseding indictment
charging Jensen with three counts: burglary, theft of
property valued at $500 or less, and assault. While the theft
and assault counts of the superseding indictment were
identical to the amended charges in the original indictment,
the burglary count, which was a new charge, alleged that
Jensen also committed the offense of burglary during the
October 23, 2014 incident, which increased her highest
charged offense from a Class A misdemeanor to a Class D
felony.

On May
3, 2016, Jensen filed a motion to dismiss the burglary count
in the superseding indictment on the basis that this charge
violated her due process rights under the Fourteenth
Amendment to the United States Constitution and Article I,
section 8 of the Tennessee Constitution. In her motion, which
alleged that the burglary charge was the result of
prosecutorial vindictiveness, Jensen asserted that "[n]o
facts on this issue have changed since the day [she] was
first charged" and that no trial testimony "shed
any additional light on these allegations that would have
been previously unknown to the State." Jensen also
argued that "on the face of the record, it appears that
the State sought increased charges against [her] simply
because she chose to exercise her right to trial and defeated
the State's efforts to convict her, " which caused a
presumption of prosecutorial vindictiveness to arise. She
also asserted that because the State failed to show by clear
and convincing evidence that "its decision to increase
the level of charges against [her] was motivated by a
legitimate purpose, " the burglary count must be
dismissed.

On May
11, 2016, the State filed a response to the motion to dismiss
that included a detailed affidavit explaining the reason for
the superseding indictment. In this response, the State asked
the trial court to deny Jenson's motion because its
affidavit rebutted any presumption of prosecutorial
vindictiveness and because no actual vindictiveness existed.
In the attached affidavit, the prosecutor assigned to
Jensen's case made the following averments:

1. I prepared the initial indictment for presentation to the
Grand Jury. I noted that there was a bound over criminal
trespass charge along with the theft. Wal-[M]art did not
provide a copy of any paperwork substantiating this charge,
so I decided to dismiss the Class C misdemeanor and have the
theft presented to the Grand Jury.

2. On September 22, 2015, the case was set for trial on short
notice for October 6, 2015, only two weeks in the future.

3. In preparing for trial, I learned more about
[Jensen's] prior involvement with Wal-Mart and was told
by the prosecuting witness for Wal-Mart that [Jensen] had
been banned from the store and there should be written proof
of this in the older file at Wal-Mart. The witness no longer
worked for Wal-Mart.

4. Knowing that I did not have time for a superseding
indictment before the trial, I did not give any thought to
that possibility.

5. If I had had more time, I likely would have explored the
possibility of a superseding indictment further, including
asking Wal-Mart to locate the form.

[6]. The trial was held on October 6, 2015, and resulted in a
hung jury.

[7]. On October 12, 2015, I asked for and received a copy of
the ban form. The emails from the Wal-Mart employee and a
copy of the form are attached to this affidavit. I did not
know prior to this time that the form used by Wal-Mart
contained language that the ban was permanent until rescinded
by Wal-Mart. Since the banning occurred more than 1 year
prior to the offense date of October 23, 2014, the exact
language of the ban form was important.

[8]. At this time I still had not decided to seek a
superseding indictment charging burglary. I was aware that
burglary was not normally used in retail shoplifting cases,
although there had been some talk around the office about
this possibility.

[9]. In mid-to-late October I attended the District
Attorney's Conference in Chattanooga. While there I had
occasion to have lunch with an Assistant District Attorney in
Knoxville. That ADA told me that they had started charging
shoplifters with burglary if they had previously been banned
from the store. I have attached an article about this policy
that was published on Nov[ember] 3, 2015, and another article
published last month where a jury convicted a defendant of
burglary on these facts in Knoxville.

[10]. Around this time frame I also had discussions with
District Attorney General Dunaway about the general propriety
of using the burglary statute in this context. He expressed
his support of this approach for repeat shoplifters.

[11]. I also called the manager of the Wal-Mart involved and
determined that the company does give individual store
managers the power to institute a policy whereby persons are
banned from the property for certain behaviors. He assured me
that he would come to court and testify to that effect as
needed.

[12]. Based on the totality of the circumstances and
encouraged by the position of the Knox County District
Attorney's Office and General Dunaway's position on
the subject, I submitted the charge[] of burglary to the
Grand Jury on November 2, 2015.

[13]. Subsequently, I have examined each shoplifting case
closely to determine if the person has previously been
banned, including making calls to the store if the situation
is unclear. I intend to continue to charge this offense.

[14]. I have no personal animosity towards [Jensen]. The fact
that she took this case to trial does not disturb me in the
least. Although the result was not what I wanted, [Jensen] is
certainly not to blame. She did not commit perjury at the
trial or do anything that was improper. I enjoy trial work
and certainly do not begrudge her desire to have another. If
Ms. Jensen's trial had been postponed for some reason and
no trial had been had on October 6, 2015, I would have
proceeded exactly as I have.

Pursuant
to an agreement between the parties, the trial court was to
base its ruling on the motion to dismiss only on the contents
of Jensen's motion and the prosecutor's affidavit,
with Jensen ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.